Uncle Sam v Big Tobacco

A lawsuit that runs against democracy itself

THE Clinton administration's lawsuit against the tobacco companies is a disgrace. The federal government is seeking retroactively to recoup from cigarette makers the money—more than $20 billion a year, it reckons, since the 1950s—it has spent on smokers' health. This is an offence against the American tradition of government. By using litigation to achieve goals that properly belong to legislation, the suit would short-circuit democratic debate on public issues. It implies, too, an open-ended commitment by the government to kill or maim any industry it thinks might encourage behaviour that drives up health bills. Waco was bad enough; but this is the crowning disgrace of Janet Reno and the Justice Department.

The states have already egregiously sued the tobacco industry to recoup public-health costs, winning a $248 billion settlement last year. Now the Clinton administration, never slow to sniff out a politically-correct political opportunity, has jumped in to claim the costs not covered by that judgment. This is a thoroughly bad idea. If the federal government wants to change public behaviour, or stop something it believes to be wrong, it can ask Congress to pass a law. The representatives of the people then have a chance to debate the issue. If the administration wants to penalise the tobacco industry, it should propose a law to make cigarettes illegal, or (since it hypocritically relies on them for tax revenue) much more expensive; and then let Congress argue the merits of the case. When the federal government resorts to the courts to impose penalties for which it knows it cannot win congressional approval, it offends against democracy.

There is a huge amount of risky personal behaviour in the world. This lawsuit takes one particular foolish pleasure, smoking, and then applies a principle and a penalty that could apply to any other. America has a huge collective problem with weight, for example: one-quarter of Americans are clinically obese. They are certainly doing themselves harm by eating buckets of fatty, sugary food, and they might be said to be imposing health costs on others because of the heart diseases and other maladies they get. On the tobacco-suit principle, those who are encouraging them to eat too much (often with fraudulent claims about “liteness” and “low-fat”) are liable for those health costs.

Anyway, this all rests on a (sadly) false premise. The idea that smokers impose costs on others is a fiction. In claiming to recoup costs, the Justice Department focuses only on the public health bill from treating smokers. It ignores the savings that come in the form of foregone medical and pension costs for the old age that smokers often fail to reach. For the most part, smoking kills people after the productive years of their lives, so they make a full contribution to health and pension schemes. But it kills them before they live long enough to burden the social welfare system very heavily. Result: smoking is good for your health spending.

Al Capone, cigarette maker

As if all that were not enough, the Justice Department has extended existing racketeering statutes (known as RICO laws) in ways which, if the case succeeds, would give it an enormous new weapon against industries it finds offensive. The suit says the tobacco firms are guilty of 116 violations of the RICO laws. They are charged with conspiring to mislead the public in pursuit of profit; if the case succeeds, they may well have to surrender their past profits as ill-gotten gains. At times, too, the RICO charges get perilously close to infringing free speech. In one, the defendants are accused of taking “false and misleading positions on issues”. The tobacco industry's suppression of evidence about the addictive nature of nicotine is well known; but the Department would also seem to be claiming that if a company takes any public position that the department considers erroneous, it is breaking the law.

The puritanical campaign against tobacco companies has long been tempting the zealots into all manner of illiberal acts. It has now corrupted the Justice Department, which is supposed to be a guardian of legal and constitutional propriety in America. Soon there will have to be a new health warning: The surgeon-general has determined that the Clinton administration is dangerous for your democracy.